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Shooting the Constitution?

Today’s landmark Supreme Court decision [1] strikes down Chicago’s handgun ban. The 5-4 majority said 2nd Amendment Rights must “apply equally to the federal government and the states.” Justice Scalia cited [2]the 14th Amendment’s ever expanding due process clause in support of the majority.

The clause is typically applied to diminish individual liberty by increasing the power of the federal government. But today, Scalia applied it to protect liberty. Paradoxically, a justice more strictly devoted to the Constitution’s original design, before the rise of the incorporation doctrine, would have had to acquiesce to arbitrary and immoral handgun confiscations carried out by state and local governments.

So should paleoconservatives and libertarians welcome the ruling? It depends whether one prioritizes individual liberty or the Constitution. Most of the time, these principles don’t conflict. But cases like today’s remind us they’re not inextricably bound.

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#1 Comment By pb On June 28, 2010 @ 3:07 pm

Paradoxically, a justice more strictly devoted to the Constitution’s original design, before the rise of the incorporation doctrine, would have had to acquiesce to arbitrary and immoral handgun confiscations carried out by state and local governments.

How is it arbitrary and immoral, if it doesn’t violate the state constitution?

#2 Comment By Bonnie Kristian On June 28, 2010 @ 3:18 pm

How is it arbitrary and immoral, if it doesn’t violate the state constitution?

Law does not justice, reason, or morality make.

#3 Comment By pb On June 28, 2010 @ 7:36 pm

Sure. But the Bill of Rights applies only to the Federal Government, even if Alito wishes for us to believe that the 14th Amendment can be used in a “right” way to serve the “conservative” agenda..

#4 Comment By TomB On June 29, 2010 @ 3:31 am

Matt Cockerill wrote:

“The [14th Amendment’s Due Process] clause is typically applied to diminish individual liberty by increasing the power of the federal government.”

I for sure don’t understand this statement. Indeed, hasn’t the cause of conservative wrath since the elevation of the DP clause by the Warren Court been that the clause has so protected individual liberties that it has rendered much governance impossible if not actually promoted anarchy? Required Miranda warnings, Exclusionary Rule, right to an abortion, and etc., etc.

pb wrote:

“… the Bill of Rights applies only to the Federal Government….”

Okay, but of course the 14th applies to the states. And if—for whatever unstated reason—you abjure referring to the Bill of Rights to interpret what the 14th means by “due process” and “equal protection,” then what alternative method do you suggest for discerning what those clauses mean?

Seems to me, as a more libertarian-minded person, that in the wake of Mssr.s Bush and Cheney and such things as the Patriot Act, and now the Dems taking over health care and considering giving the Prez. control of the internet, that it’s way past time for conservatives to reconsider their negative knee-jerk and indeed anti-conservative reactionism against a robust reading of the 14th DP and EP clauses. Conservatives are supposed to be *against* Leviathan, right?

Indeed, maybe the only beneficial thing Mr. Bush accomplished was unintentionally opening at least some conservative eyes to this.

#5 Comment By bob elloyan On June 29, 2010 @ 4:03 am

“Paradoxically, a justice more strictly devoted to the Constitution’s original design, before the rise of the incorporation doctrine, would have had to acquiesce to arbitrary and immoral handgun confiscations carried out by state and local governments.”

That sentence should be taken out and shot.

#6 Comment By Bonnie Kristian On June 29, 2010 @ 5:59 am

Granted it’s easy to argue that this is a blow against federalism and the original intent of the Constitution rather than a victory for liberty — as Matt indeed notes. That’s why it isn’t easy to form an opinion on this: Is it better, for instance, to support this ruling because it fosters liberty — and the Constitution is flawed anyway? Or is it better not to support it because, though flawed, the Constitution preserved intact is likely to better defend against future infringements of liberty? I don’t know.

But I do know that the fact that a state constitution says something is legal is not any reason to say it’s not arbitrary or immoral. That was my sole point above. State constitutions were made by politicians too — just politicians whose scandals and corruption we personally don’t remember.

#7 Comment By Druk On June 29, 2010 @ 3:22 pm

Incorporation should never have happened (why have a state constitution anymore?). But since it did, there is no reason to exclude the 2nd amendment from it. I’m glad that hypocrisy was overruled, if nothing else.

#8 Comment By Thomas O. Meehan On June 29, 2010 @ 10:37 pm

Most state constitutions are based on the Federal Constitution, sometimes word for word. So if the Federal Constitution recognizes an individual right to keep and bear arms, it would follow that the same wording would have the same meaning in all state constitutions. There is precious little evidence that any of the original states tried to disarm their citizenry within the lifetimes of the founders. Hence the decision really just affirms original rights at the time of adoption.

I agree with TomB. The horse is out of the barn regarding incorporation. The up-side to this is that the Constitution is fundamentally and 18th Century conservative document. As such, it’s a poor scaffold for the erection of a totalitarian state.